Friday, April 17, 2009

Update: The piece of legislation (H.R. 450) discussed in this article now has 20 co-sponsors. All Republican. This of course also means 158 Republicans don't see the value of the bill, furthering the argument the difference in the two parties is nuance only.

Legislator to colleagues: 'Your laws not authorized by Constitution'

April 09, 2009

By Chelsea Schilling

As a reminder of the federal government's limited powers, 20 representatives want to ensure that every single piece of legislation passing through Congress includes a statement citing specific constitutional authority for enacting it.

Sponsored by Rep. John Shadegg, R-Ariz., H.R. 450, or the Enumerated Powers Act, states, "Each Act of Congress shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that Act. The failure to comply with this section shall give rise to a point of order in either House of Congress. …"

When he introduced the proposal Jan. 9, Shadegg gave a House floor speech reminding his colleagues of limited authority granted in the 10th Amendment of the United States Constitution.

It states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

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"What that means is that the Founding Fathers intended our national government to be a limited government, a government of limited powers that cannot expand its legislative authority into areas reserved to the states or to the people," Shadegg said. "As the final amendment in the 10 Bill of Rights, it is clear that the Constitution establishes a Federal Government of specifically enumerated and limited powers."

For that reason, Shadegg said he has introduced the Enumerated Powers Act each year that he's been in Congress.

"This measure would enforce a constant and ongoing re-examination of the role of our national government," he said. "… It is simply intended to require a scrutiny that we should look at what we enact and that, by doing so, we can slow the growth and reach of the Federal Government, and leave to the states or the people, those functions that were reserved to them by the Constitution."

Shadegg said the act would perform three important functions:

1. It would encourage members of Congress to consider whether their proposed legislation belongs in the federal level in the allocation of powers or whether it belongs with the states or the people.

2. It would force lawmakers to include statements explaining by what authority they are acting.

3. It would give the U.S. Supreme Court the ability to scrutinize constitutional justification for every piece of legislation. If the justification does not hold up, the courts and the people could hold Congress accountable and eliminate acts that reach beyond the scope of the Constitution.

He said the Founding Fathers granted specific, limited powers to the national government to protect the people's freedom.

"As a result, the Constitution gives the Federal Government only 18 specific enumerated powers, just 18 powers," Shadegg noted.

Beginning with President Franklin Roosevelt's New Deal, he said, Congress has ignored the 10th Amendment and greatly expanded federal government.

"Let me be clear," he said. "Virtually all the measures which go beyond the scope of the powers granted to the Federal Government by the 10th amendment are well-intentioned. But unfortunately, many of them are not authorized by the Constitution. The Federal Government has ignored the Constitution and expanded its authority into every aspect of human conduct, and quite sadly, it is not doing many of those things very well."

While many believe government "can do anything," that is not what the Founding Fathers intended for the nation, Shadegg contends.

WND columnist Henry Lamb has been urging voters to contact representatives and ask directly if they will co-sponsor and vote for the Enumerated Powers Act, or explain why not – in writing.

The legislation has 19 co-sponsors – all Republicans.

Lamb suggested the act become the theme song of the tea parties taking place around the nation.

"Nothing short of massive public pressure will force congressmen to take a position on this important bill." Lamb wrote. "Nothing short of a return to the Constitution can save this great nation."

Rep. Louise Slaughter, D-N.Y., chairs the House Rules Committee, and Rep. John Conyers, D-Mich., chairs the House Judiciary Committee – where the act was referred Jan. 9 and remains today.

"Both of these committee chairs should be bombarded with phone calls and e-mails asking that H.R. 450 be brought to the House floor for a recorded vote," Lamb wrote.

Shadegg said the federal government has acted too long without constitutional restraint and has blatantly ignored principles of federalism.

He urged his colleagues to join him in "supporting a review and a criticism and an evaluation of the proper role of the Federal Government in order to empower the American people and to distribute power as the Constitution contemplated it."

Democracy and majority rule give an aura of legitimacy to acts that would otherwise be deemed tyranny. Think about it. How many decisions in our day-to-day lives would we like to be made through majority rule or the democratic process? How about the decision whether you should watch a football game on television or "Law and Order"? What about whether you drive a Chevrolet or a Ford, or whether your Easter dinner is turkey or ham? Were such decisions made in the political arena, most of us would deem it tyranny. Why isn't it also tyranny for the democratic process to mandate what type of light bulbs we use, how many gallons of water to flush toilets or whether money should be taken out of our paycheck for retirement?

The founders of our nation held a deep abhorrence for democracy and majority rule. In Federalist Paper No. 10, James Madison wrote, "Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." John Adams predicted, "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide." Our founders intended for us to have a republican form of limited government where the protection of individual God-given rights was the primary job of government.

Alert to the dangers of majoritarian tyranny, the Constitution's framers inserted several anti-majority rules. One such rule is that election of the president is not decided by a majority vote but instead by the Electoral College. Nine states have over 50 percent of the U.S. population. If a simple majority were the rule, conceivably these nine states could determine the presidency. Fortunately, they can't because they have only 225 Electoral College votes when 270 of the 538 total are needed. Were it not for the Electoral College, that some politicians say is antiquated and would like to do away with, presidential candidates could safely ignore the less populous states.

Part of the reason our founders created two houses of Congress was to have another obstacle to majority rule. Fifty-one senators can block the designs of 435 representatives and 49 senators. The Constitution gives the president a veto to weaken the power of 535 members of both houses of Congress. It takes two-thirds of both houses of Congress to override a presidential veto.

To change the Constitution requires not a majority but a two-thirds vote of both Houses to propose an amendment, and to be enacted requires ratification by three-fourths of state legislatures. The Constitution's Article V empowers two-thirds of state legislatures to call for a constitutional convention to propose amendments that become law when ratified by three-fourths of state legislatures. I used to be for this option as a means of enacting a spending limitation amendment to the Constitution but have since reconsidered. Unlike the 1787 convention attended by men of high stature such as James Madison, Thomas Jefferson, George Washington and John Adams, today's attendees would be moral midgets: the likes of Barney Frank, Chris Dodd, Olympia Snowe and Nancy Pelosi.

In addition to an abhorrence of democracy, and the recognition that government posed the gravest threat to liberty, our founders harbored a deep distrust and suspicion of Congress. This suspicion and distrust is exemplified by the phraseology used throughout the Constitution, particularly our Bill of Rights, containing phrases such as Congress shall not: abridge, infringe, deny, disparage or violate. Today's Americans think Congress has the constitutional authority to do anything upon which they can get a majority vote. We think whether a particular measure is a good idea or bad idea should determine passage as opposed to whether that measure lies within the enumerated powers granted Congress by the Constitution. Unfortunately, for the future of our nation, Congress has successfully exploited American constitutional ignorance or contempt.

Tuesday, April 14, 2009

Our Colonial ancestors petitioned and pleaded with King George III to get his boot off their necks. He ignored their pleas, and in 1776, they rightfully declared unilateral independence and went to war. Today it's the same story except Congress is the one usurping the rights of the people and the states, making King George's actions look mild in comparison. Our constitutional ignorance – perhaps contempt, coupled with the fact that we've become a nation of wimps, sissies and supplicants – has made us easy prey for Washington's tyrannical forces. But that might be changing a bit. There are rumblings of a long overdue re-emergence of Americans' characteristic spirit of rebellion.

Eight state legislatures have introduced resolutions declaring state sovereignty under the Ninth and 10th amendments to the U.S. Constitution; they include Arizona, Hawaii, Montana, Michigan, Missouri, New Hampshire, Oklahoma and Washington. There's speculation that they will be joined by Alaska, Alabama, Arkansas, California, Colorado, Georgia, Idaho, Indiana, Kansas, Nevada, Maine and Pennsylvania.

You might ask, "Isn't the 10th Amendment that no-good states' rights amendment that Dixie governors, such as George Wallace and Orval Faubus, used to thwart school desegregation and black civil rights?" That's the kind of constitutional disrespect and ignorance big-government proponents, whether they're liberals or conservatives, want you to have. The reason is that they want Washington to have total control over our lives. The founders tried to limit that power with the 10th Amendment, which reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

New Hampshire's 10th Amendment resolution typifies others and, in part, reads: "That the several States composing the United States of America, are not united on the principle of unlimited submission to their General (federal) Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." Put simply, these 10th Amendment resolutions insist that the states and their people are the masters and that Congress and the White House are the servants. Put yet another way, Washington is a creature of the states, not the other way around.

Congress and the White House will laugh off these state resolutions. State legislatures must take measures that put some teeth into their 10th Amendment resolutions. Congress will simply threaten a state, for example, with a cutoff of highway construction funds if it doesn't obey a congressional mandate, such as those that require seat belt laws or that lower the legal blood-alcohol level to .08 for drivers. States might take a lead explored by Colorado.

In 1994, the Colorado Legislature passed a 10th Amendment resolution and later introduced a bill titled "State Sovereignty Act." Had the State Sovereignty Act passed both houses of the legislature, it would have required all people liable for any federal tax that's a component of the highway users fund, such as a gasoline tax, to remit those taxes directly to the Colorado Department of Revenue. The money would have been deposited in an escrow account called the "Federal Tax Fund" and remitted monthly to the IRS, along with a list of payees and respective amounts paid. If Congress imposed sanctions on Colorado for failure to obey an unconstitutional mandate and penalized the state by withholding funds due, say $5 million for highway construction, the State Sovereignty Act would have prohibited the state treasurer from remitting any funds in the escrow account to the IRS. Instead, Colorado would have imposed a $5 million surcharge on the Federal Tax Fund account to continue the highway construction.

The eight state legislatures that have enacted 10th Amendment resolutions deserve our praise, but their next step is to give them teeth.